Legal Path to Special Master Unclear

By Bill Dries

If U.S. District Court for the Western District of Tennessee Judge Samuel “Hardy” Mays appoints a special master to oversee the merger of Shelby County’s two public school systems, there are legal questions about how much authority the master would have and precisely what he or she would do to advance the merger’s pace.

And during a surprising status conference on the schools court case Monday, Feb. 25, Mays heard those questions from attorneys for the various sides in the lawsuit, according to the one attorney in the room who does not represent someone in the case.

Countywide school board attorney Valerie Speakman briefed school board members Tuesday, Feb. 26, on her appearance at the closed conference. Mays specifically invited her to be there for the school board. Her account indicated she and the other attorneys were surprised when Mays mentioned the possibility of a special master.

“Among the parties there was a question as to whether the judge has the power, if you will, to tell (school) board members how to vote and when to vote and what to vote on,” she said. “I suspect that he would have the greatest latitude in giving us deadlines on when to do things.”

Speakman said she was present a year ago when the issue of appointing a special master was raised. The special master is in the 2011 consent decree agreed to by all sides that sets the terms for the merger including the creation of the current 23-member school board.

Speakman said a year ago Mays indicated the special master “was only to be used with legal disputes between the parties.”

“He said that a special master was not to be used to resolve disputes among this body,” Speakman said, adding that when Mays raised the issue again Monday, “The immediate reaction among all the parties was what would the special master do.”

After hearing from Speakman and asking a lot of questions, the school board voted Tuesday, Feb. 26, to file no response to Mays’ call for positions on whether he should appoint the master and if so, whom he might consider for the job.

The board’s decision was recommended by interim Memphis City Schools superintendent Dorsey Hopson.

“I would recommend as a lawyer to not file anything,” said Hopson, who prior to his appointment last month was general counsel to Memphis City Schools. “When you invite somebody into your kitchen … it’s just a recipe for disaster.”

Mays set a Wednesday afternoon deadline for the different parties in the 2-year-old schools lawsuit to file a response, if they wished, on the matter of the special master. That included what the duties of a special master would be if appointed.

Speakman said Mays specifically thought the timeline for picking the merger superintendent is much too late. The school board voted last year to hire a consulting firm to conduct a national search for a superintendent and had an original goal of hiring the merger superintendent by mid-February. At its meeting a week ago, the board approved a new timeline, putting the hire date in the third week of May.

Some school board members indicated they will probably propose that the board push the search timeline past the start of the first merger school year in August or otherwise put off the search.

That would make official what is already the de facto working arrangement with last month’s resignation of Memphis City Schools superintendent Kriner Cash. With Cash’s departure, Shelby County Schools superintendent John Aitken has become the superintendent in charge of the merger planning.

Some board members argued that Mays’ consideration of a special master comes as the board is about to make major policy decisions such as whether to outsource custodial and transportation services.

“It took us awhile to get off the tricycle and get on the bicycle,” school board member Diane George said. “We meet just once a month and these decisions I know are not as rapidly as they would like them to be. … One dot causes another thing to happen and we’ve got to start connecting these dots to make a big dot.”

School board member Tomeka Hart was one of several board members who said the process hasn’t moved as fast as she has wanted.

“I think we have been ridiculously delayed and putting things off,” she said. “I don’t like the process from the beginning. But there’s nothing in the (2011 consent decree) that I see that can say we are late.”

School board vice chairwoman Teresa Jones was more adamant about her frustration.

“We need to own what’s going on here. … It’s the factions on this board,” she said. “They are the reason we continue to have these same conversations over and over and over again. We vote on a resolution. We embark on a path. At the very next meeting, we start all over again.”